So just what were the facts in Donoghue v Stevenson?

It may seem surprising but many Law students, lecturers and lawyers do not carry extensive case lists in their head. The law is constantly evolving and it's better to look up a key case than to try to work from memory.

But there are some cases that have become so famous that they're heavily remembered and invariably encountered in law classes. Some set down key legal principles, such as Carlill v Carbolic Smoke Ball Co ([1893] 1 QB 256), one of the best known cases in Contract Law. Others are remembered because of problems they exposed in the justice system, such as the Adolf Beck case that showed how unreliable eyewitness evidence can be. And then there's the case on which negligence law is founded, Donoghue v Stevenson.

Donoghue (or McAlister) v Stevenson ([1932] All ER Rep 1) may well be the best known legal case in British history. Notably, the relevant chapter in 100 Cases That Every Scots Law Student Needs to Know is titled "The Most Famous Case Of All". It's not hard to see why.

The case was key in the development of negligence law, by far the most litigated part of Tort. It applied to both Scots Law and English Law (the assertion that the law was identical in both jurisdictions was not disputed during the case though some have later questioned this) and the ruling was taken up across common law jurisdictions. It's often encountered by Law students very early in their studies. Many law schools (including the Open University's) teach Tort Law at Level 1; some others may leave Tort to Level 2 but have introductory Law modules that include Donoghue. It involves a highly ordinary scenario of a drink in a café with a very memorable horrific image that is easy to relate to. And the ruling invokes grand religious principles of the duty to one's neighbour.

In all this it's easy to forget some basics in the case. Including that the facts of the case were never actually established.

It doesn't help that the House of Lords judgment itself opens with "My Lords, the facts of this case are simple" as though there were established facts even though the opening paragraph also contains the disclaimer "she alleged, and at this stage her allegations must be accepted as true...".

In most cases an appeal on a point of law to a higher court is not the conclusion of a dispute. Usually, the higher courts will rule on the appeal and then the case goes back to the lower courts to be determined in light of that ruling. In this dispute, the ruling meant that Donoghue could sue Stevenson for negligence despite not having a contractual relationship and so a hearing was scheduled. But in the intervening period Stevenson died and before the case could eventually be tried his estate settled out of court.

So we don't know for certain the facts of the case. The story is of a woman (Mrs Donoghue) and her friend going to a café in Paisley on the evening of 26 August 1928, the friend ordering drinks, Mrs Donoghue drinking most of an opaque bottle of ginger beer and then, when the remainder was poured, discovering it contained the dead body of a snail, causing her to suffer shock and gastric illness.

But it was never proved in court that there was a dead snail in the bottle. Nor was it ever proved for certain that the bottle of ginger beer had been prepared and sealed by Stevenson's company. This was a time when bottles were often reused and sometimes returned to the wrong manufacturer. Although his estate settled, Stevenson, had he lived, may well have based his response on this and a court would have had to determine whether or not his company had indeed been responsible for a dead snail getting into the bottle.

And so perhaps the most famous case of all has no clear facts.

(Image created with Microsoft 365 Copilot.) 

The big product liability case: Coyote vs. Acme

Is there anything sadder than getting excited about a film involving a product liability case?

I'll avoid answering that one. But tomorrow just such a film comes out, Coyote vs. Acme (and yes, that's not the way to cite a case...) in which Wile E. Coyote takes on the company which supplies all his defective equipment:

(Yes it doesn't come out until next week in the US. But this is a UK based blog and here proceedings start tomorrow.)

And this is not the first time that this dispute has been contemplated. Back in 1990 The New Yorker carried a fictitious legal case document, Coyote v. Acme by Ian Frazier.

Although comedic, this is based on a serious legal concept, product liability. A manufacturer and supplier has a duty to supply well-designed goods that work as intended and come with warnings. Wile E. Coyote's attempts to catch the Road Runner have so often failed because the equipment he's obtained from Acme has been defective. The US based Pisanchyn Law Firm has a blog post explaining this in more detail at What Coyote vs. Acme Teaches Us About Product Liability (Yes, Seriously).

So tomorrow we'll see one coyote take on a big corporation and it should be fun.

One line of defence I doubt we'll see is the question as to whether Wile E. Coyote is a single animal. This moment, from the 1955 short Ready.. Set.. Zoom! suggests otherwise and there may be a limit to how much one coyote can claim:

So tomorrow we'll see some fun as Wile E. Coyote finally takes on his true nemesis. And have some legal fun at the same time.

A Level results day

Good luck to all those of my readers getting their A Level results today.

And this is also a day when a lot of confused statistics and nonsense fly about. So here are a few potential rejoinders.

Firstly, a lot of the statistics about the number of students accepted onto particular subjects at university come from UCAS. The figures only cover applications made through them and don't include students who've applied to the institution directly, which includes many distance learning, mature and/or part-time students. This is especially true in subjects where the Open University has the largest student numbers in the country, such as Law.

Secondly, there's often a lot of nonsense written about A Levels getting easier. This has been going on since at least when I took my A Levels back in... erm... very many years ago, and probably long before then. A lot of this comes from non-specialist journalists and commentators writing and opining on a subject they don't know the full details of. The reality is that much has changed over the years including teaching methods, technological support, methods of examination and also the competitive environment with ever greater numbers of students applying to university and under ever more pressure to perform well. So direct comparisons of grades across the decades don't mean much; nor can you pull out an old A Level paper (something much easier to do in the internet age) and ask today's pupils to answer it to compare results.

It does not help that normally this is about the slowest news week of the entire year and A Level results are a guaranteed source of news that get perhaps too much attention. If they came out in a busier news week then the coverage would be more limited and likely to be dominated by those who actually understand the education sector. Maybe this year the Clacton by-election (which is polling today in case you haven't noticed) will help draw away some of the less informed.

If you haven't got the grades you were hoping for, don't panic. There are plenty of options out there, whether going through Clearing, taking a break or the Open University amongst others. There are many lawyers and other professionals who have got where they have in spite of A Level disappointment.

(Image created with Microsoft 365 Copilot.)

How accurate is Educating Rita?

By far the best known film about the Open University is Educating Rita from 1983. Written by Willy Russell, based on his stage play of the same name, it stars Michael Caine as lecturer and OU tutor Frank Herbert and Julie Walters as Susan "Rita" White, a hairdresser taking an OU course in Literature:

So how accurate to modern day OU study is it?

In my experience not very. It may have been much closer to reality in 1983 but technology and the methods of OU study have moved on a lot in the decades since.

In Educating Rita the methods of teaching we see are regular in-person one-on-one tutorials, lectures broadcast on television at anti-social hours and a summer school whilst assessment is by final examination. All of these are very different from how I have been taught and assessed. For starters, I have not had any physical meetings with any of my tutors. All our contact has been through either online group tutorial sessions (and these are not always taken by my own assigned tutor), emails or the occasional arranged one-on-one call. Invariably the interaction is very different to that of Rita and Frank and so the whole premise of the film would not work. Also, there are no longer televised lectures. (The one shown here appears to be broadcast late at night when the BBC Programme Index suggests the OU was generally broadcasting in the morning in this period. However looking again on the film's apparent release date * 16 June 1983, we do indeed find very late evening lectures were broadcast on both BBC1 and BBC2.) There are some summer schools and other in-person teaching events but not on my modules. But instead students do get to interact through online tutorials and forums (and unofficial WhatsApp groups) and there are some assignments that require us to respond to each other's work. In contrast to Rita's exam, so far on my modules at least they have all been fully assessed by coursework though I understand this is a relatively recent development for OU Law modules.

Some things that are familiar include the studying with books at home amidst potential distractions all around or the awkward hours for sessions that can interfere with domestic and social life for both students and tutors ("They expect me to teach when the pubs are open!") though nowadays most evening online tutorials seem to be taken by tutors from their homes (and there are fewer restrictions on pub opening hours). Rita is a young working woman who left school without any qualifications and is seeking to advance herself through the OU; through the WhatsApp groups supporting my modules I have encountered a number of real life OU students who fit this description.

But regardless of how it reflects studying today, it's a good film to watch. Oh and it has Michael Caine actually saying the line previously misattributed to him. "Not many people know that."

(* Film release dates can be tricky to look up at a glance, especially for films in the pre internet era. In those days, it was common for a film to be released first in London's West End and then steadily rolled out across the country. The exact rollout might vary a bit for other factors, most obvious school holidays. There's also the complication of dates for premieres that were often not the day immediately before a film was available to the public anywhere. And international releases were staggered as well. Online searches for a British film often bring up anything ranging from the premiere through to a US general release.

The main reason behind all this was the cost of the physical film prints with many reused from one market to the next. However as global communications and marketing grew, whilst technology made piracy easier, the staggered release dates increasingly created problems as demand was whipped up before the official supply was ready. Some of the big blockbuster movies started investing in many more screening prints to allow for global simultaneous releases and the more recent rise of digital projection has removed the print cost problem. However, staggering can still take place for other reasons such as a country's distributors waiting for a film to prove itself in other markets or even just aligning to local peak weeks for greater ticket sales.)